IMMIGRATION OF SAME-SEX COUPLES
Margaret Young
Law and Government Division
8 January 1992
Library of Parliament
Bibliothèque du Parlement
Research Branch
Canada
IMMIGRATION OF SAME-SEX COUPLES
This paper will outline the rules governing the immigration of
same-sex couples in three countries: New Zealand, Australia, and the
Netherlands. It will also discuss the changes to Canadian law that
would be required to enable same-sex partners to immigrate to Canada.
AUSTRALIA
The process of immigration for a same-sex partner of an Australian
citizen or permanent resident comprises three stages for those
applying outside the country, and two stages for those applying in
Australia. The process, which came into effect on 15 April 1991,
involves the granting of a conditional status in Australia, which must
continue for at least two years before permanent resident status will
be granted. The following is an outline of the required stages,
including the criteria which must be satisfied at each stage.
Included as Appendix 1 are the regulations governing each application.
[I have no Appendix 1.]
A. Interdependency (Temporary) Visa - For Applicants Outside of
Australia
This visa is valid for six months and allows the holder (and
dependent children) to enter Australia in order to continue a
relationship of interdependency. Permission to work is also included.
The following are applicable criteria:
. the sponsor must be an Australian citizen or permanent resident and
not related to the applicant;
. the applicant must be at least 18 years of age and residing with
the sponsor;
. the couple must be closely interdependent, and have a continuing
commitment to mutual emotional and financial support;
. the relationship must be acknowledged by both parties;
. further, the Australian Minister of immigration must be satisfied
that the relationship is genuine, has existed for at least 6 months
(unless the Minister finds that there are exceptional circumstances
for reducing that period), and that the relationship will continue;
and
. any dependent children must meet public interest and health
criteria.
The involvement of the Minister means that all applications and
documentation must be forwarded to Australia for decision.
B. Extended Eligibility (Interdependency) Entry Permit
This permit is valid for a two-year period and grants conditional
residence based on a relationship of interdepedency. For those
applying from within Australia, this is the first step to permanent
residence. For those who entered the country on the temporary visa
described above, it is the second step. The following criteria are
applicable:
. all of the criteria as described above, including the fact that, if
the applicant is the holder of the temporary permit, this
application must be based on the same relationship;
. the applicant must not be an illegal entrant (with some
exceptions);
. in the case where the sponsor has died, the Minister is satisfied
that the relationship would have continued and the applicant has
developed close business, cultural or personal ties in Australia.
C. Interdependency (Permanent) Entry Permit
This permit grants permanent residence on the basis of a
relationship of interdependency with an Australian citizen or
permanent resident. The following criteria are applicable:
. all of the criteria as described in each of the above categories;
. the applicant must be the holder of an Extended Eligibility
(Interdependency) Entry Permit (described in #2); and
. two years must have elapsed from the time of application to the
time of decision.
NEW ZEALAND
Applicants may qualify for permanent residence in the family
category on the basis that they have a homosexual relationship
provided:
. their partner is a New Zealand citizen or resident who supports the
application; and
. the couple have lived together in a genuine and stable relationship
for four years or more.
Applications may be assessed abroad or in New Zealand. If
assessed in New Zealand, applicants who have resided with their
partner fewer than four years but more than two are eligible for a
work permit and the final decision on permanent residence will be
deferred until the full period has elapsed.
All aspects of the criteria must be proved by documentary
evidence. Details of the instructions to immigration staff on how to
assess these types of applications are found as Appendix 2 to this
paper. [I have no Appendix 2.]
THE NETHERLANDS
An official at the Embassy of The Netherlands confirms that this
country allows the immigration of same-sex partners who are sponsored
by a citizen. An application for a visa can be processed either
abroad or in the Netherlands upon documentary proof of an emotional
relationship. Final decisions are all made in The Netherlands. The
applicant must have health insurance and officials must be satisfied
that adequate arrangements for settlement of the applicant have been
made. For example, the sponsor must have a job, a house and so on.
I am informed that there are no special regulations dealing with
the matter.
CANADA
It is noteworthy that each of the countries discussed above also
makes provision for the immigration of heterosexual common law
spouses. For them, therefore, the recognition of homosexual
relationships may not be too large a leap. In contrast, Canada, at
the present time, defines spouse in the Immigration Regulations as a
legally married member of the opposite sex. Thus, extension of the
rules to cover homosexual partnerships without at the same time
covering heterosexual partnerships might be seen to be anomalous.
That, however, is another issue, and this section of the paper will
deal only with the changes that would be necessary to Canadian law to
permit the immigration of same-sex couples.
A. The Immigration Regulations
The most appropriate analogy to same-sex partners under
immigration law would seem to be with spouses. Spouses enjoy two
important rights: 1) the right to accompany their husbands or wives
to Canada as immigrants (subject to public interest and health
criteria) when the latter are accepted as immigrants, and 2) the right
to be sponsored for immigration by their husbands or wives when the
latter are Canadian citizens or permanent residents. Both of these
situations are provided for in the Regulations.
The right to enter the country with their immigrating spouses
occurs because spouses are included in the definition of "dependents"
in section 2(1) of the Regulations and their entry is provided for in
section 6. The right to be sponsored arises because spouses are
included in the list of "Members of the Family Class." In order for
same-sex couples to be treated in the same manner as spouses,
therefore, it would seem desirable to provide for both types of entry.
The required changes could be accomplished by changing the
definition of "spouse" in section 2 of the Regulations, which
currently reads: "spouse, with respect to any person, means the party
of the opposite sex to whom that person is joined in marriage."
Tinkering with that definition, however, would seem difficult because
its main elements (opposite sex, joined in marriage) do not apply to
same-sex couples. Further, the criteria given below as possible
elements of the definition wuld [sic] exclude some legally-married
couples.
A new category, therefore, would seem preferable. The new
category would be defined in the definition section and then included
as both a "dependent" and a "member of the family class" in every
place where those terms are used in the regulations.
The definition of the new category could vary; as noted above, New
Zealand and Australia provide examples. To summarize, New Zealand
requires the couple to have been:
. living together,
. in a genuine and stable relationship,
. for a period of four or more years.
Australia requires that:
. the individuals not be related to each other,
. each party acknowledge the relationship,
. the relationship to be genuine,
. the parties be residing together,
. the parties be closely interdependent,
. the parties have a continuing commitment to mutual emotional and
financial support, and
. the relationship have continued for at least six months.
B. The *Immigration Act*
The Act is less significant for present purposes than are the
Regulations but several points are worth noting. The Act contains a
definition of "family" in section 2 which begins "`family' means the
father and mother and any children who ...." Those words are not
determinative, however, because the definition concludes that "family"
also includes "such other classes of persons as are prescribed [by
regulation] ..." Thus, others may be, and have been, included in the
definition of family, beyond the nuclear family. The actual
prescription of members of the family class, in any case, arises more
directly from the definition of "members of the family class" (also
found in section 2 of the Act), which merely states that a member is
one who is described in the regulations as a sponsorable person. In
short, because the structure of the Act is somewhat unclear on this
point, it might not be necessary to amend the definition of "family"
but doing so would emphasize the recognition of homosexual rights
accomplished by other changes.
The second point with relation to the Act is that there is already
a non-discrimination provision. One of the objectives of the Act, as
stated in section 3, is "to ensure that any person who seeks admission
to Canada on either a permanent or temporary basis is subject to
standards of admission that do not discriminate in a manner
inconsistent with the *Canadian Charter of Rights and Freedoms*." If
the section had listed specific grounds on which discrimination was
not to occur, an amendment adding "sexual orientation" to the list
would have been possible. As it is, however, the case law under the
Charter will ultimately determine whether or not same-sex couples
receive the same treatment as other couples (assuming the Regulations
are not amended in the interim). There has already been case law to
the effect that the *Canadian Human Rights Act* violates section 15 of
the Charter (the equality provision) by omitting sexual orientation
from its proscribed grounds of discrimination.(1)
To conclude in relation to the *Immigration Act*, it would seem
that no amendments are necessary to the Act itself, although one is
possible, and that same-sex immigration can be achieved through
amendments to the Regulations or, failing that, possibly through
litigation or human rights channels.
----
(1) *Haig* v. *Canada*, 5 O.R. (3rd) 245 (Ontario Court, General
Division), under appeal